ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 26 July 2019 DOCKET NUMBER: AR20180008045 APPLICANT REQUESTS: upgrade of his general under honorable conditions discharge to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states, in effect, in the 25 years since he got a driving while under the influence (DUI) charge in Germany, soon after returning from Operation Desert Storm, he has been a proud, law abiding American and always proud of his service and fellow Service members. He states it was a mistake when he was young and he has learned forever from it. 3. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 25 April 1990. He was assigned to Company A, 6th of the 52nd Air Defense Artillery, Germany on or about 9 September 1990 until on or about 5 October 1992. He served in a deployed status in Southwest Asia from 15 December 1990 to 5 May 1991. Upon completion of his deployment, he was immediately returned to duty with his unit in Germany. b. On 26 November 1991, he received a general officer letter of reprimand for operating a motor vehicle while intoxicated. c. He accepted non-judicial punishment (NJP) under the provisions of Article 15 on/for: * 2 January 1992, for operating an automobile while drunk on or about 13 November 1991; his punishment consisted, in part, a reduction in grade to the rank of private/E-2 (suspended for 90 days) * 8 April 1992, for operating a vehicle while drunk; his punishment consisted, in part, of a reduction in grade to the rank of private/E-1 d. On 29 July 1992, the applicant’s immediate commander recommended a bar to enlistment/reenlistment against him for receiving two Article 15s for the same offense (operating an automobile while drunk). The applicant acknowledge receipt of the proposed action, confirmed he was counseled and advised on the basis of the action, and did not wish to submit a statement on his behalf. The bar to reenlistment certificate was approved by the approving authority on 9 September 1992. e. The applicant’s immediate commander notified him of his intent to initiate separation proceedings against him under the provisions of Army Regulations (AR) 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12b for a pattern of misconduct based on actions consisting of discreditable involvement with civil authorities and conduct prejudicial to good order and discipline (document not dated). f. On 17 September 1992, the applicant acknowledged receipt of the commander’s intent to separate him. He declined the opportunity to consult with legal counsel and did not provide a statement on his behalf. He acknowledged: * he understood that if the recommendation for separation was approved, he could receive a General or Honorable Discharge * he understood that he would be ineligible to apply for enlistment in the United States Army for a period of two years after discharge g. He was recommended for separation by his immediate commander and the recommendation was endorsed by the applicant’s intermediate commander on 21 September 1992. h. The separation authority approved the applicant's discharge on 27 September 1992, under the provisions of AR 635-200, paragraph 14-12b for a pattern of misconduct. He ordered the applicant be furnished a General Discharge Certificate. i. The applicant was discharged on 7 October 1992. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of AR 635-200 paragraph 14-12b for a pattern of misconduct. He was given a general under honorable conditions discharge characterization of service. He completed 2 years, 5 months, and 13 days of active service with no lost time. 4. There is no evidence the applicant has applied to the Army Discharge Review Board for review of his discharge within that board's 15-year statute of limitations. 5. By regulation (AR 635-200), Soldiers are subject to separation under the provisions of chapter 14, for a pattern of misconduct consisting of discreditable involvement with civil or military authorities. Also taken into account is conduct prejudicial to good order and discipline. Discreditable conduct and conduct prejudicial to good order and discipline includes conduct volatile of the accepted standards of personal conduct fount in the Uniform Code of Military Justice (UCMJ), ARs, the civil law, and time –honored customs and traditions of the Army. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record. 6. The Board should consider the applicant’s submission in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After review of the application and all evidence, the Board determined relief is not warranted. The applicant’s contentions were carefully considered. The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record and did not find any evidence of error, injustice, or inequity. He accepts responsibility for his actions. He did not provide character witness statements or evidence of post-service achievements for the Board to consider. He was discharged for a criminal offense and was provided an under honorable conditions (General) characterization of service. The Board agreed that the applicant's discharge characterization is warranted as he did not meet the standards of acceptable conduct and performance of duty for Army personnel. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING X :X :X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provides that an honorable discharge is given when the quality of the Soldier's service has generally met standards of acceptable conduct and duty performance. b. Paragraph 3-7b provides that a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory, but not sufficiently meritorious to warrant an honorable discharge. c. Paragraph 14-12b, of the version in effect at the time, provides members are subject to separation under the provisions of this section for patterns of misconduct related to frequent incidents of discreditable nature with civil or military authorities. Also taken into account is conduct prejudicial to good order and discipline. Discreditable conduct and conduct prejudicial to good order and discipline includes conduct violative of the accepted standards of personal conduct fount in the Uniform Code of Military Justice (UCMJ), ARs, the civil law, and time –honored customs and traditions of the Army 3. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records may grant clemency from a sentencing in a court- martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. a. This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. In determining whether to grant relief on the basis of equity, injustice, or clemency grounds, Boards shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official government acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. b. Changes to the narrative reason for the discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180008045 4 1